ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: J-10-2763
DATE: 2012/01/20
BETWEE N:
HER MAJESTY THE QUEEN
M. Fox, for the Crown
- and -
TERRY DANIEL LEGACY
N. Gregson, for the Defendant
HEARD: December 2, 2011
The Hon. Mr. Justice Arrell
JUDGMENT
Introduction:
[ 1 ] The accused seeks to sever the two counts on the indictment. In response, the crown seeks an order allowing similar fact evidence to be led regarding the two counts, should severance be allowed.
[ 2 ] The accused is charged that between September 12, 2007 and September 24, 2007 he committed aggravated assault on D.B.S., who was then 14 months old. He is further charged that on May 11, 2008 he committed second-degree murder on Cohen Legacy, who was then 7 weeks of age.
Facts:
[ 3 ] M.B.-S. was born on […], 1983. She has given birth to three children, N. aged 12, D. aged 5, Cohen. aged 7 weeks at death. The accused is the biological father of Cohen. M. and the accused began dating in May of 2006. They started to live together, with M.'s then two children, in the later part 2006. They continued to cohabitate until Cohen’s death in May 2008, except for a 4 to 6 week period during the fall of 2007.
[ 4 ] In the spring of 2007 the accused was not employed. He was responsible for the children while M. worked during the evenings as a cleaner.
[ 5 ] On Wednesday, September 19, 2007 the accused took D. and N. home from M.'s mother's at approximately 8:00 pm. M. arrived home from work on Thursday, September 20, 2007 at approximately 3:00 am. She immediately noticed that something was wrong with D. and took him to the hospital. It was, however, only after several medical appointments with the family Doctor, over a seven-day period that an x-ray was finally taken, which showed a fractured hip. The child was then hospitalized and treated.
[ 6 ] The paediatric orthopaedic surgeon, who treated D., was suspicious that he may have been abused as fractures of the type he had are incredibly rare in young children. The CAS was alerted. The accused gave two videotaped statements. In the first he suggested the child may have fallen out of bed while at M.'s mother's. In the second he stated that in fact the child had fallen down the basement stairs while in his care, after leaving M.'s mother's home, while M. was at work.
[ 7 ] The police and CAS decided this second explanation was plausible and no charges were laid at that time. The accused was not allowed in the house until he had completed some parenting classes, which he did, over a 4 to 6 week period. He then moved back in with M. and the children.
[ 8 ] On May 11, 2008 Cohen was 7 weeks of age. At about 10:00 pm. M. and the accused were preparing for bed when the child woke. M. went out for a cigarette and the accused was walking Cohen in the house. After M. came back into the home, and while making a couple of bottles, the accused, who was still holding Cohen said “M., I think something is wrong”. M. grabbed Cohen and called 911. He died in hospital shortly thereafter.
[ 9 ] The autopsy reported some bruising, a healing injury under the upper lip, three right rib fractures in various states of healing, an extensive haemorrhage to the left side of the head, a 7 cm. skull fracture, retinal haemorrhages to both eyes, a bruise to the liver, a few small areas of injury on the large bowel, and a depletion of white blood cells within the thymus. Cause of death was attributed to blunt force head injuries. The skull fracture occurred between 5 and 14 days prior to death. The haemorrhage around the brain was fresh, immediate, and just prior to death. It was considered the ultimate cause of death.
[ 10 ] Subsequent to the death of Cohen, a detailed skeletal examination of D. revealed three previously broken ribs. The paediatric orthopaedic surgeon who initially treated D. was advised of the explanation from the accused that the child had fallen down the basement stairs. It is this doctor’s opinion that the fall, as described by the accused, would not be of significant enough force to cause the particular injury to D.'s hip that he treated.
Position of the Parties:
[ 11 ] The crown argues that the counts should not be severed because the assault and murder arise out of the same transaction pursuant to section 589 (a) of the Criminal Code of Canada . The crown further argues that the two crimes constitute similar fact, and the facts from one should therefore be admissible in the trial of the other.
[ 12 ] The defence urges the court to find that the facts between the two crimes are not similar, nor do they arise out of the same transaction. As such, the counts should be severed and the crown should not be allowed to call evidence from count 1 in the trial of count 2 as similar fact.
[ 13 ] Both counsel agree that if this court concludes that the evidence on one count should be admitted as similar fact evidence on the trial of the other count, then the counts should not be severed.
R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont.C.A.)
Analysis: Similar Fact:
[ 14 ] Similar fact evidence is presumptively inadmissible. The onus is on the crown to satisfy the trial judge, on a balance of probabilities, that in the context of the case at bar, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.
R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908 at para 55 .
[ 15 ] The fact that the alleged similar facts had common characteristics with the acts charged, could render them admissible, however, it would be necessary to conclude that the similarities were such that absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence.
R. v. Handy , supra at para 41 .
[ 16 ] The cogency of similar fact evidence is said to arise from the repetitive and predictable nature of the appellant's conduct in closely defined circumstances. There must therefore be shown a persuasive degree of connection between the similar fact evidence in the offense charged in order to be capable of raising the double inference. The degree of required similarity is assessed in relation to the issue sought to be established and must be evaluated in relation to the other evidence in the case. If the cumulative result is simply to paint the appellant as a “bad person”, it is inadmissible.
R. v. Shearing , 2002 SCC 58 , [2002] 3 S.C.R. 33 at para 38
[ 17 ] The principal driver of probative value is the connectedness (or nexus) that is established between the similar fact evidence and the offense alleged, particularly where the connections reveal a “degree of distinctiveness or uniqueness”.
R. v. Handy , supra at para 76 .
[ 18 ] Where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.
R. v. Arp , [1983] 3 S.C.R. 339 at para 48
[ 19 ] A link between the accused and the alleged similar acts is, however, also a precondition to admissibility.
R. v. Arp , supra at para 54
[ 20 ] A principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused’s involvement in the alleged similar acts or counts is unlikely to be the product of coincidence... Where similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted.
R. v. Arp , supra at para 45.
[ 21 ] The similarities of the evidence in the two crimes would appear to be as follows:
a) Both infants were M.'s children;
b) Both infants were in the same home with the accused;
c) Both children were male and fussy;
d) Both children were virtually nonverbal and unable to communicate the source or nature of their injuries;
e) Both children were dependent on others for care;
f) Both children were in the sole care of the accused while M. was working;
g) None of the injuries to either child were capable of being self-inflicted;
h) None of the injuries were of the type that would be inflicted by a stranger;
i) The rib injuries to both children were similar;
j) The injuries to both children indicate a loss of control by a caregiver;
k) Bruising to both children was present;
l) Both children had old injuries.
[ 22 ] There are dissimilarities of evidence between the two crimes:
a) Cohen was completely non-mobile at 7 weeks, while D. was a toddler who was walking at 14 months;
b) Although D. would be considered virtually non-verbal he could say a few words, and feed himself, while Cohen could not;
c) Two different victims;
d) Different injuries, hip versus head, except for the ribs and bruising;
e) Although the accused was the sole caregiver while M. was working, this was at night when the children were generally asleep;
f) Unexplained bruising of toddler is not uncommon.
[ 23 ] The defence advises that there is a strong possibility that the accused may have to testify, with regards to Cohen, while that may not be possible if similar fact evidence from D. is allowed and the counts are not severed. Likewise it is argued by the defendant that the case is much more complex if similar fact evidence is allowed and the counts are not severed.
[ 24 ] Clearly, there is a risk of prejudice to the accused if similar fact evidence of the two crimes is allowed. There is always such a risk when an accused faces more than one crime and when children are the victims.
[ 25 ] The potential for collusion would not appear to be significant as all of the injuries to the children are verified by medical evidence, the victims will not be giving evidence, and any collusion would necessarily have to involve the CAS and investigating police officers.
[ 26 ] The similar fact evidence is proposed to be admitted to assist in proving the intent of the accused and that he is the perpetrator, as opposed to the only other two realistic possibilities being either M. or her mother, B., as possible perpetrators.
[ 27 ] It would appear that on the balance of probabilities the same perpetrator, out of the potential of three, caused both sets of injuries to these two children. The evidence against the accused regarding D. includes exclusive opportunity, rapid onset of pain, two inconsistent statements to the police, neither of which could be true based on the medical evidence. It would appear that the two crimes are related intrinsically in time and place. The only intervening event of significance that the jury should hear would be the parenting course the accused took between the two crimes to assist him in appropriate parenting.
[ 28 ] There is no doubt there will be a disadvantage to the accused if the facts of the two crimes are admitted. However, for there to be prejudice it must be assumed of the jury would embark on a prohibited line of reasoning. In the case at bar there are only two incidents and the facts are really not that complicated. It would not be difficult for a jury to follow the trial judge’s instructions and apply them to the evidence. It is trite law that juries are presumed to follow trial judge’s instructions.
[ 29 ] In R. V. Olsen , 1999 1541 (ON CA) , [1999] O.J. No. 218 the Court of Appeal allowed similar fact evidence in a case somewhat similar to the case at bar. The accused had pleaded guilty to violently shaking his 2 month old son. Six years later the accused was charged with killing his 6 month old daughter by violently shaking her. The court concluded there was enough evidence connecting the accused to the injuries suffered by his son to admit that evidence as similar fact in the trial of the murder of his daughter. The court of appeal agreed with the trial judge that the evidence of the son’s injuries was obviously relevant to the issue of identity and to the issue of intent for 2 nd degree murder, that is, to the foreseeability of the consequences of causing bodily harm. The case at bar has similar issues.
[ 30 ] In R. v. Arp , supra at para 50 the Supreme Court instructs trial judges as follows:
“In summary, in considering the admissibility of similar fact evidence, the basic rule is that the trial judge must first determine whether the probative value of the evidence outweighs its prejudicial effect. In most cases where similar fact evidence is adduced to prove identity it might be helpful for the trial judge to consider the following suggestions in deciding whether to admit the evidence:
(1) Generally where similar fact evidence is adduced to prove identity a high degree of similarity between the acts is required in order to ensure that the similar fact evidence has the requisite probative value of outweighing its prejudicial effect to be admissible. The similarity between the acts may consist of a unique trademark or a signature on a series of significant similarities.
(2) In assessing the similarity of the acts, the trial judge should only consider the manner in which the acts were committed and not the evidence as to the accused's involvement in each act.
(3) There may well be exceptions, but as a general rule, if there is such a degree of similarity between the acts that it is likely that they were committed by the same person then the similar fact evidence will ordinarily have sufficient probative force to outweigh its prejudicial effect and may be admitted.
(4) The jury will then be able to consider all the evidence related to the alleged similar acts in determining the accused's guilt for any one act.
Once again, these are put forward not as rigid rules, but simply as suggestions that may assist trial judges in their approach to similar fact evidence.”
[ 31 ] In reality there are only three possible perpetrators being the accused, M., or her mother, B.. In the result, the risk of prejudice to the accused is greatly diminished, because he will have every opportunity to attack either M. or B. as being the possible perpetrator.
[34] I also acknowledge that the accused indicated in submissions the he “may have to testify on the murder count” but may be precluded if there is no severance of the counts or similar fact evidence is admitted. I am not persuaded that he is so precluded given that his apparent defence to the assault charge, based on his statement, appears to be accident with D. having fallen down the basement stairs.
[31] I have concluded, based on all the circumstances of this case, that the crown, on a balance of probabilities, has shown that the probative value of the similar fact evidence from the two counts is strong and outweighs any potential risk of prejudice to the accused, which I believe can be dealt with by clear instructions from the trial judge. The evidence arising out of the two incidents is significantly similar and it would be an affront to common sense to conclude that the similarities were due to coincidence. It is also likely that the two offences were carried out by the same person. There is clearly a significant degree of distinctiveness about the evidence of the two separate crimes.
Conclusion:
[36] The crown has persuaded me that evidence on one count may be admitted as similar fact evidence at the trial of the other count. I therefore need not deal with the oral motion of the accused to severe the counts as both counsel agree I should not sever if similar fact evidence is admissible. As such the motion to sever is dismissed and the motion to allow similar fact evidence is granted.
ARRELL, J.
Released: January 20, 2012
COURT FILE NO.: J-10-2763
DATE: 2012/01/20
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HER MAJESTY THE QUEEN - and - LEGACY REASONS FOR JUDGMENT ARRELL, J.
Released: January 20, 2012